Since the U.S. Supreme Court’s decision striking down the definition of marriage for federal law purposes, it is becoming more apparent that it will create a legal quagmire for the state of Tennessee and other states that define marriage as the union of one man and one woman. But what will it reveal about the political courage of our state’s elected officials?
To understand the legal problem, the legal setting needs to be understood. The problem is framed by two important decisions.
The first is the Supreme Court’s Defense of Marriage Act (DOMA) decision. The Court said that the Constitution requires the federal government to look to state law to determine the meaning of marriage-related terms in federal law. That seems simple enough since each state defines marriage.
The second involves a ruling last week by a federal district court judge in Ohio. The judge ruled unconstitutional a provision in Ohio’s state constitution that forbids the state from recognizing same-sex marriages validly performed in other states (and countries). Tennessee has a similar provision in its constitution.
The effect of the Ohio decision, if upheld by the federal Sixth Circuit Court of Appeals and applied to Tennessee’s constitution, is this: Tennessee would still not be required to grant same-sex marriage licenses to its residents, but a homosexual couple residing in Tennessee who can afford to go to another state to get married would, upon their return, have to be treated as married under Tennessee law.
This is going to create a state’s rights/federalism battle royal, assuming Tennessee’s elected officials have the stomach for it.
Many social programs, such as Medicaid and food stamps, are administered by the states but mostly governed by federal law. Thus, it would seem that the federal government would look to Tennessee’s law to determine who, under these programs, is married and who is not.
But what happens if the Ohio decision becomes binding precedent in Tennessee relative to our state constitution? Tennessee will be forced to recognize some same-sex marriages that Tennessee’s citizens, through their vote on our state constitutional amendment, chose not to recognize.
As a result, a conflict will immediately arise between what the federal government, through the courts, will require Tennessee to recognize as a marriage and what Tennesseans voted to recognize as a marriage.
Ultimately, the United States Supreme Court will have to decide whether Tennessee will really be allowed to determine what marriages it will recognize. But the battle ending there begins in the Sixth Circuit Court of Appeals with a challenge to the recent district court’s ruling.
It is growing more and more clear that our Attorney General, Governor, and state legislators are going to have to decide if they will stand up for what Tennessee’s voters wanted marriage to mean in Tennessee or capitulate to the courts and the federal government without a fight.
If our Attorney General decides not to submit our state’s “two cents worth” in the Ohio case to be before the Sixth Circuit shortly, then we will know he supports same-sex marriage. More importantly, we will know that he is willing to ignore the clearly expressed will of 80% of Tennessee’s voters. Unfortunately, he can do that since he’s not in any way accountable to the voters.
However, if that happens, then we’ll find out where our Governor and state legislators stand on the issue of marriage. Under the law, the Speakers of the state House and Senate can agree to retain legal counsel to represent Tennessee. I think they would do so, but let’s hope they have plenty of encouragement in that regard from their legislative colleagues and the Governor.
Whether our elected officials decide to defend the vote of the people in the coming months may help the people determine how they want to vote on them when those officials come up for re-election next year.